White House calls for cell phone unlocking ban to be overturned

The legality of unlocking one's cell phone to run on any network has flipped back and forth in the past several years. It was deemed illegal under the Digital Millennium Copyright Act—then it was made legal by the Library of Congress in an exception to the DMCA passed in 2006. The Library chose not to renew the exemption in 2012, however, and it expired in January of this year. That inspired a petition to the White House, which a few weeks ago passed the 100,000 signature mark. The White House then promised to respond.

Today the White House posted its response to the petition. The administration opposes the Library of Congress' position, and it called for legislation to make consumers' freedom to unlock their phones crystal clear.

"If you have paid for your mobile device, and aren't bound by a service agreement or other obligation, you should be able to use it on another network," writes R. David Edelman, a White House advisor. "It's common sense, crucial for protecting consumer choice, and important for ensuring we continue to have the vibrant, competitive wireless market that delivers innovative products and solid service to meet consumers' needs."

The response tries to be diplomatic toward the Library of Congress. "The law gives the Librarian the authority to establish or eliminate exceptions—and we respect that process," writes Edelman. But his response also notes that "the DMCA exception process is a rigid and imperfect fit for this telecommunications issue," and the problem warrants a broader response.

The Library of Congress has its own statement out. The statement uses awkward language to acknowledge it's out of step with the White House, without really admitting it was wrong in the first place.

"The rulemaking is a technical, legal proceeding and involves a lengthy public process," reads the Library's statement. "It does not permit the US Copyright Office to create permanent exemptions to the law. As designed by Congress, the rulemaking serves a very important function, but it was not intended to be a substitute for deliberations of broader public policy."

Edelman's statement ends by calling for "narrow legislative fixes" that would make it clear: unlocking your cell phone isn't a crime. In addition to legislation, the White House also calls for the FCC to play a role. FCC Chairman Julius Genachowski released a statement (PDF) this morning saying that his agency is "looking into whether the agency, wireless providers, or others should take action to preserve consumers' ability to unlock their mobile phones."

This White House action may be able to solve this particular problem. But it doesn't change the fact that the DMCA exemption process is an unwieldy and problematic system attempting to deal with the big economic questions brought up by copyright enforcement in the digital age.

Long road for college phone unlocker

Overall, the petition response is a big victory for Sina Khanifar, the San Francisco entrepreneur who founded OpenSignal and started the petition. Khanifar recently told his story to Derek Khanna, and it was published on The Atlantic's website. Khanifar unlocked his own cell phone back in 2004 and then tried to sell software to allow others to do the same on a website he created called Cell-Unlock.com. However, he was soon on the receiving end of a "cease and desist" letter from Motorola saying he was breaking the DMCA.

Without cell phone unlocking, many consumers will be forced into the position of needing to buy a new phone if they want to switch carriers. It can also lead to exorbitant charges for international roaming. Those charges are what Khanifar was trying to avoid when he first unlocked his own phone back in 2005.

In an e-mail, Khanifar reflected to Ars on what has been accomplished and what still remains to be done:

As the White House said in the response, keeping unlocking legal is really "common sense," and I'm excited to see them recognizing this.

This is a big victory for consumers, and I'm glad to have played a part in it. A lot of people reacted skeptically when I originally started the petition, with lots of comments to the effect of "petitions don't do anything." The optimist in me is really glad to have proved them wrong. The White House just showed that they really do listen, and that they're willing to take action.

While I think this is wonderful, I think the real culprit here is Section 1201 of the DMCA, the controversial "anti-circumvention provision." I discussed with the White House the potential of pushing to have that provision amended or removed, and they want to continue the discussion.

Public Knowledge, a group that has long been calling for legalizing cell phone unlocking, also heralded the White House statement. However, the group noted that additional reforms to copyright are needed. "These problems will continue so long as the law is written in such a way that laws intended to protect artists can be abused to stifle competition," said Sherwin Siy of Public Knowledge.

Promoted Comments

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public. You can create a tool to unlock you own phone, if you don't have the skill to make your own then tough luck. The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

87 Reader Comments

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public. You can create a tool to unlock your own phone, if you don't have the skill to make your own then tough luck. The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

Equally important is that under the DMCA even if phone locking were legal it is still unlawful to make an unlocking tool available to the public. You can create a tool to unlock your own phone, if you don't have the skill to make your own then tough luck. The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

Completely, totally this. The DMCA is a bad law that puts way too much power into the hands of large corporations, stifling innovation and infringing on individual ownership rights in the process. It needs to be repealed.

But they paid for the DMCA and should be able to use it to its fullest extent. /s

Nobody and nohow, respectively. But if you were to develop a simple one-click program to do it for your phone or anyone else's, and offer it on the web, or even explain how to create it, ICE could jump on you and your web provider so fast you'd wonder how free your speech really is.

Not only does this rule need to be reversed, but the point needs to be driven home to the Library of Congress like a kick to the head. Such an egregiously bad decision on the part of the Library of Congress means that they are not qualified to make these decisions, and this review process needs to be taken away from them altogether. Nothing will get the attention of a bureaucrat more than taking their power away.

You would have a hell of a time finding utilities to unlock your iPhone, as teams of lawyers will be sending a flood of DMCA takedown notices to the ISPs of everyone that uploads or hosts such a utility, which they are legally obligated to act on immediately.

No one would go after you directly because you're a small fish, UNLESS you start an iPhone unlocking business, and advertise your services.

I think I recall from an earlier article, some of the carriers "promising" to unlock out-of-contract phones. Any word what kind of reactions people are getting when they approach their respective carriers? (Fees, rejections, etc.)

Also, from another article, the "Librarian was also influenced by claims that there are more unlocked phones on the market than there were three years ago."

I just don't get why people simply don't purchase unlocked phones to begin with?

1. Because in many cases, carriers essentially force you to pay for phones by subsidizing "free/discounted" phones with their normal monthly rates. So it becomes an issue of getting a phone and paying for it via a padded monthly bill, or not getting a free/discounted phone but still paying just as much. Fair monthly rates for customers who don't want "free" phones are not universally available.

2. Shopping for unlocked phones is not a fun process. Most retailers don't offer them because the market is flooded with locked carrier-branded phones. Most stores have a dozen or more carrier-branded phones, but finding an unlocked phone which is fully compatible with your carrier's system is not so easy. It can be done, mainly with Internet retailers, but the selection is narrower and warranties are often invalid.

The main point which should be hammered is unequal protection for sellers and buyers.

Sellers want to ability to flood the market with under-priced money-losing products as a way of using their finances to brutalize new competitors. This is normally considered a shady gray practice. It is often illegal in various countries for other industries (witness the EU actions against Micro-Soft for giving away "free" applications with their OS), with some governments allowing it and other governments often banning it. In the US, the wireless industry wants freedom from regulation--their products and retail shops, they should be able to do anything they want.

But they don't want buyers to be free from regulations. They want buyers to be subject to regulations for the good of the industry because, freedom-be-damned, they want the government to step in and control behavior to protect them from free market choices made by consumers who want to unlock phones and sell them.

Odd. I was thinking that once the White House sends a decision down the pipeline, all former rules, regulations, laws, etc., are wiped off the table completely and the lone WH decision usurps everything else. Meaning that anything to do with DMCA laws becomes instantly null and void. I guess I didn't realize how impotent Capitol Hill really is. Cell phone companies employing the DMCA is actually ILLEGAL, always has been. If I buy a car, no one can tell me that it's illegal to drive my car outside of the state in which I bought it. Done. Period. I'm right. Thank you, come again!

Why is the library of congress making laws? that is not what it was created for.

The librarian of congress was appointed by the Congress to make explicit exemptions to the provisions of the DMCA. Since it's a law about copyright who better to asses copyright issues than the nations top librarian?

Doesn't making phones easy to unlock make the black market value of stolen phones higher? I thought I read that police think allowing phones to be easily unlocked will increase the incidence of phones being snatched and stolen.

The DMCA and the processes around it are so broken that I truly believe that the best thing is to nuke it from orbit, then start again.

which to this day. no law was ever removed and rewritten. People in congress dont have the programming logic of shit-is-broken-time-to-rewrite-program.

The 18th Amendment to the Constitution and the Volstead Act were repealed by the passage of the 21st Amendment. Innumerable municipal and state Jim Crow laws were nullified with the passage of the Civil Rights Act of 1964. Simply because a law that you personally disagree with has not yet been repealed or otherwise nullified doesn't mean that "no law was ever removed and rewritten".

OK. So "no law that didn't create civil disobedience on a massive scale". By that criteria the DMCA is well on the way to repeal.

It make me sick to my stomach that doing something with ones own property could be a CRIMINAL offense.

If a carrier has an interest in tying a phone to a particular carrier because they're subsidizing the phone, this should be a matter of civil contract law.

That's because our politicians and judges have ruled it's not your property. Oh, sure, you own the hardware but the software is just licensed and since it runs the device you'd have ... I think if I keep writing I'm going to suffer an aneurism.

Yes, and it isn't just A criminal offense. Have you seen some of the outrageous penalties for breaking the DMCA? Hell, murderers and rapists get treated better than people who break copyright.

I just don't get why people simply don't purchase unlocked phones to begin with?

If you're on a carrier such as AT&T, there is no incentive to do so, as they'll charge you the same contract rate whether or not you take a subsidized handset from them.

If you are on a contract, I can't help you. YOU signed it. Paying for convenience has always been more expensive. 7-eleven is in business charging 2x-3x more for snacks, so we know it works.

Cell phones are the same. Nobody forces you onto a contract. There are cheaper solutions (total cost) available. Very few people actually need data on their cell phones. You can live without it driving to work and home. At home, use wifi. At work, use their network. On travel and NEED data? Pay the daily or monthly rate to get data. T-mbl is $15/7 days. http://mobile-broadband.t-mobile.com/plans

Sure, if you travel all the time, having data may be more than a convenience.

BTW, my cell phone costs are $10/yr now through t-mobile. Pre-paid plan, no data, and I only need to add money once a year to keep the plan alive. 5 or 6 yrs ago when I first got on this plan, it was $130 for the first year to get the pre-paid stuff to last 365 days. I think there is still $80 in the account. If the costs are split out for monthly costs, it is less than $2.40/month now. So last year my real cell phone costs ballooned due to the purchase of an unlocked N4 smartphone (actually the company paid, not me). Still, that $380 is much cheaper than any annual cell plan. Had to get a microSIM - $1.05 - then switched my account from the old SIM to it without ANY hassle by t-moble.

There certainly are options to being "on contract." Don't act like you don't have a choice.

Don't worry. The telcos in particular, and corporations in general, will just find another way to fleece the public in order to grantee their continued high profit margins. It's really just like playing whack-a-mole with them.

That is the capitalist economy that everyone wanted... now that a successful capitalist engine (corporations) wants to get bigger and bigger of the fodder (people) we are upset? - not serious :-DNow seriously... we need laws to bring corporations in line so that they do not abuse their power.

Who gives a shit what the head librarian says, congress can't agree on anything but pay raises anyway.

Take your out of contract iphone, jailbreak it in like 3 minutes, buy a straight talk sim from walmart for 15$ bucks and use there service its $45 a month for unlimited(limited unlimited...). If you prepay the whole year its $495 or $41.25 a month.

Anyone who can "restore" their iphone can jailbreak it also. My 10 year old son jailbroke his ipod touch last week to get around the app-store restrictions I implemented through parental controls. He said he watched a youtube video & did it the first time in less than 10 minutes.

There's a conundrum for you, try to explain to your son that he shouldn't jailbreak his ipod to get around restrictions even though I did to my iphone, so i could use the tethering for free.....I told him(after much deliberation on it) that the difference was that i was jailbreaking a device i owned, in order to use the teethering app to share data i paid for already.(unlimited data grandfather plan) That he was jailbreaking his ipod to get around MY restrictions & that wasn't right because not only am i his father & he should abide by me, but that i was the rightfull owner of the device to begin with.

buy a straight talk sim from walmart for 15$ bucks and use there service its $45 a month for unlimited(limited unlimited...).

That doesn't sound like a very impressive deal. Virgin mobile is cheaper than that if you want "unlimited" data and only need a few hundred minutes of talk time per month. Boost goes below that after a few months. Ting can do far better than that. And Republic wireless is only $19/mo,

buy a straight talk sim from walmart for 15$ bucks and use there service its $45 a month for unlimited(limited unlimited...).

That doesn't sound like a very impressive deal. Virgin mobile is cheaper than that if you want "unlimited" data and only need a few hundred minutes of talk time per month. Boost goes below that after a few months. Ting can do far better than that. And Republic wireless is only $19/mo,

Virgin & Boost both use the Sprint Nextel network... I'll pass on that. Especially to save just a few dollars more per month. I want my service to be cheaper, not crappier.I'm not sure who the other's mentioned use but the amount i quoted was for unlimited everything, not "a few hundred minutes".

My original point is there are tons of other choices than Verizon & At&T. To each their own, but if people would start putting a little effort in the Big 2 would come down off there pedestal when they start losing customers. Having to swap a new sim card in the side of your own phone is "to much" for most consumers...... So the duopoly continues.

Very few people actually need data on their cell phones. You can live without it driving to work and home.

Right, because driving directions work so well without an internet connection...

Having Mapquest route me around traffic on my way to work every day is the biggest reason I'm willing to pay for a smartphone and service plan.

There are mapping applications that store the maps on an SD Card and can work without an internet connection, basically a software version of a Garmin. You won't get live traffic updates, but for many people it's not worth $70/month for that feature.

You may not agree with the LOC's decision, but if you really want to understand the ruling, rather than simply vent about it, you might want to take five minutes and read the article.

Or not . . .

You're too lazy to even pretend to summarize linkspam (you've also posted this very same text in two different threads), and at the same time imply that people complaining about the decision are too lazy to understand it.

My original point is there are tons of other choices than Verizon & At&T.

Not really there isn't.If you stop and really investigate the smaller carriers, the regional carriers, and the pre-paid carriers you start to see a bleak picture emerge as they're all tied to one of the "big 4", and two of those 4 (Sprint, T-Mo) are tied to the big 2 (Verizon, AT&T, respectively) through roaming agreements necessary for widespread coverage.

Straight Talk is completely dependent on AT&T and Verizon. nTelos, a regional provider here in SE Virginia, is 100% dependent on Sprint - who only has decent roaming coverage thanks to Verizon. Virgin Mobile and Boost Mobile are only good in locations where roaming isn't an issue because they're Sprint-based but NOT subject to the roaming agreements between Sprint and Verizon.

Any way you slice it, the duopoly continues because of anti-competitive practices and the protections telecoms continue to receive from the best lobbyists money can buy.

You may not agree with the LOC's decision, but if you really want to understand the ruling, rather than simply vent about it, you might want to take five minutes and read the article.

Or not . . .

You're too lazy to even pretend to summarize linkspam (you've also posted this very same text in two different threads), and at the same time imply that people complaining about the decision are too lazy to understand it.

hmmmmm

Yes I posted it in two threads because I thought it was relevant to each one.

If you don't want to take the time to read a short, well-written article that is your choice. What makes you think you'd accept my explanation anyway? The first thing you'd do is ask for a source, so I gave it to you.

My original point is there are tons of other choices than Verizon & At&T.

Not really there isn't.If you stop and really investigate the smaller carriers, the regional carriers, and the pre-paid carriers you start to see a bleak picture emerge as they're all tied to one of the "big 4", and two of those 4 (Sprint, T-Mo) are tied to the big 2 (Verizon, AT&T, respectively) through roaming agreements necessary for widespread coverage.

Straight Talk is completely dependent on AT&T and Verizon. nTelos, a regional provider here in SE Virginia, is 100% dependent on Sprint - who only has decent roaming coverage thanks to Verizon. Virgin Mobile and Boost Mobile are only good in locations where roaming isn't an issue because they're Sprint-based but NOT subject to the roaming agreements between Sprint and Verizon.

Any way you slice it, the duopoly continues because of anti-competitive practices and the protections telecoms continue to receive from the best lobbyists money can buy.

They're only tied to the big 2 if you live in an area not covered by the smaller players or by a regional or if you insist that it's worth the extra $/month it costs to have a larger footprint. My wife has been on Virgin Mobile for the last two years and the fact that she can't roam to Verizon has never once been an issue.

You may not agree with the LOC's decision, but if you really want to understand the ruling, rather than simply vent about it, you might want to take five minutes and read the article.

Or not . . .

That's a summary of the original decision, but to call it well-reasoned is a bit strange.

Other than some firmware talk that doesn't really make much sense, it assumes that providers are ready and willing to unlock devices (only T-mobile makes this easy), and that the locked device is the only way the carrier will recoup their subsidy outlay, which is why the reason we have contract termination fees. The fact that unlocked handsets are available on the market is a red herring, this is about people using devices they already own on compatible networks.

You're too lazy to even pretend to summarize linkspam (you've also posted this very same text in two different threads), and at the same time imply that people complaining about the decision are too lazy to understand it.

hmmmmm

Yes I posted it in two threads because I thought it was relevant to each one.

If you don't want to take the time to read a short, well-written article that is your choice. What makes you think you'd accept my explanation anyway? The first thing you'd do is ask for a source, so I gave it to you.

There's no pleasing some people.

I did read it. As a general rule, however, I don't bother to read links posted without at least a summary, because posts like yours generally end up leading to links that are lame advertisements.

And my point stands: you couldn't be bothered to try and summarize your own link, and we're the lazy ones?

Here's what you should have written:

fgoodwin wrote:

This article explains why the LOC first permitted the DMCA unlocking exemption, then reversed its earlier decision:

The upshot is that several things have changed since the original unlocking decision was made:1) legal opinions about whether phone firmware is sold or licensed have changed1a) phone locking allows carriers to better recover phone subsidies2) carriers allow you to unlock your phone3) unlocked phones are more available

You may not agree with the LOC's decision, but if you really want to understand the ruling, rather than simply vent about it, you might want to take five minutes and read the article.

As for the article, while it's clear, it ignores the problems with the law which required the LoC to rule as it did.

1) a phone without firmware is a paperweight, which means that if we accept that firmware is licensed rather than sold, then we accept that nobody owns their phones...or printers computers, thermostats, cars, etc. This line of reasoning leads to insanity more-or-less instantly. Additionally, per the LoC's ruling, jail breaking your phone is still legal, and jailbreaking involves...modifying your phone's firmware! Add in tablets (jailbreaking these is illegal), and you've got a confusing mess of contradictory rulings.

I assume that the LoC is aware of the contradiction here, which means that it's the result of following the DMCA, rather than simple incompetence.

1a) this simply makes no sense. If someone wants to jump to another carrier, they're liable for an ETF which theoretically is the fee which recoups the carrier's subsidy. If someone simply skips out on a contract, the carrier adds the phone's IMEI to a block list, and the phone cannot be activated unless/until the remainder of the contract fees are paid (or perhaps never; I don't really know the details of this). Also, the phone company presumably maintains a list of people who owe them money, and won't allow those people to sign up for a new contract without paying up. None of this stuff relies on a phone being locked to a carrier. Sure people can get around this, but the carrier lock doesn't change that. All it does is make it harder for law-abiding folks to switch carriers while keeping their phones (which they may or may not actually own).

So, even if a person skips out on a contract, unlocks the phone and sells it internationally, they can't do this more than once per carrier (or less, if carriers share information about who defrauded them), unless they're willing to lie about their personal information. At that point, a little thing like being in violation of the DMCA seems unlikely to stop them from cheating the carriers.

2) While carriers do generally allow their customers to unlock a phone after fulfillment of certain conditions, people who purchase a locked phone second-hand are in a different position. If I'm in the market for a second-hand phone, I'd better already have an account with my carrier of choice, and attempt to activate the phone before paying, or else I could get a nasty surprise. Carrier locking makes it more difficult for people to choose an arbitrary carrier, unless they also accept a carrier's phone. In short, the carrier lock is a disincentive to purchase a second-hand phone (which the carrier makes no profit off of), and again discourages people from switching carriers legally.

3) More unlocked phones are available now than before. How nice. I can get some phone or other unlocked, and if the phone I want isn't available unlocked, well that's just too bad. Similarly, unlocked phones are generally not available on the monthly-payment terms that locked phones are available on, which means that if I want a particular phone, I'd better be able to pay for it up front. In short, unlocked phones are for the rich.

Yes, the LoC probably had good reasons for ruling the way that they did, but the ruling is pretty clearly anti-consumer, and anti-competitive. It's the result of an amazingly poor law which, with the exception of it's safe harbor provisions, is entirely bad for everyone except for a few large copyright-holding companies.

2) While carriers do generally allow their customers to unlock a phone after fulfillment of certain conditions....

Then again, they might not, or they might demand $50 (or more) for the unlock code, even though it's been fully paid off for over a year (has happened to me). They'll trot out a litany of bogus, faux-technical (*) and faux-legal (*) rationalizations for it -- and when those rationalizations are punctured by an informed customer, just stonewall.

(*) eg. "it's a lot of work to figure out the unlock code for the phone we sold you, and we need to cover that expense."

(*) eg. "But you bought a $Service-Provider_Brand phone, not a general use phone -- and if you want a more valuable general phone, well, that costs more. You really owe us the equivalent of the down-payment on a cool new phone, to make up the difference -- if you won't agree to that, forget it")

If you stop and really investigate the smaller carriers, the regional carriers, and the pre-paid carriers you start to see a bleak picture emerge as they're all tied to one of the "big 4", and two of those 4 (Sprint, T-Mo) are tied to the big 2 (Verizon, AT&T, respectively) through roaming agreements necessary for widespread coverage.

Plenty of MVNOs use only Sprint's network, without roaming onto Verizon. They all work just fine and get plenty of business.

Sprint's CDMA coverage isn't as deep as Verizon's, but Nextel's coverage was pretty good out in the fringes, and that's mostly because of frequency. Now with them dropping the Nextel network, they've got those prime frequencies completely open to use as they see fit. With the influx of cash from their purchase, they very well could build out their LTE network on those frequencies, and completely blow past both AT&T and Verizon, who are using higher frequencies.

Unfortunately, Sprint missed a great opportunity in the transition from WiMax to LTE. If they came out with dual WiMax/LTE phones, they could have instantly advertised the largest 4G network, and if they'd built-out LTE in the areas with the biggest gaps in WiMax coverage, they could really have had great coverage in short order, and with less money invested.

But I digress. Their coverage isn't nearly as bad as you suggest, and even if it was worse, it would probably still be worth the massive savings compared to Verizon/ATT. Their roaming fees aren't high, as they're mandated by congress, and they have a lot of potential to do things right in the future and really compete.